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Regulatory: Zeroing Out Regulations

House Republicans have announced that they will try to block implementation of parts of the new health care and financial reform laws adopted in 2010 and EPA rules regulating Green House Gas (GHG) emissions that become effective in January. How could they hope to succeed when they control only one body of Congress and the President would veto any legislation that sought to repeal these measures? The answer is that the new Republican majority will try to pass laws "zeroing out" the appropriations necessary for the agencies to develop or enforce the rules required to implement these measures. These legislative battles are likely to be a major focus of federal regulatory activity in 2011.

"Zeroing out" is a term developed by federal budget experts to describe a situation in which a new law explicitly precludes an agency from expending appropriated funds to implement a law that Congress previously had enacted. A typical "zeroing out" provision might state that "Notwithstanding any other provision of law, the agency shall expend no funds appropriated by Congress" to take a specific action. The Snail Darter decision, TVA v. Hill, 437 U.S. 153 (1978), established that subsequent passage of legislation explicitly denying appropriations to carry out a defined function can neutralize a substantive law previously passed by Congress and deprive it of any practical effect. The law remains on the books, however, and springs back to life if Congress fails in any future year to zero out the agency's appropriations for that purpose.

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John Cooney

John F. Cooney is a partner in the Washington, D.C., office of Venable.

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